The Assault on the Universal Right of the Freedom of Movement

Over the last three decades there has been an assault on our universal right to the freedom of movement.[i] This has become so intense that legal scholars have devised a new terminology to describe the phenomenon as the “criminalization of migration” or “crimmigration.” Garcia Hernandez has defined crimmigration as the “intersection of criminal law and procedure with immigration law and procedure.”[ii] He notes that it has taken three broad trends: “(1) criminal convictions are now ever more often than not leading to immigration consequences; (2) violations in immigration law are increasingly being punished through the criminal justice system; and, (3) law enforcement tactics traditionally viewed as parts of one or the other area of the law have crossed over into the other making the enforcement of immigration law resemble criminal law enforcement, and turning criminal law enforcement into a semblance of immigration law enforcement.”[iii] In Canada, this reached its zenith under the Conservative Government of Stephen Harper with his regressive reforms of the immigration and refugee system such as 2010 Balanced Refugee Reform Act, that introduced the Designated Countries of Origin (DCO); imposed strict limitations on refugee claim processing times; identified certain refugee claims as manifestly unfounded; and, established, finally, a new Refugee Appeal Division (RAD).[iv] The 2012 Protecting Canada’s Immigration System Act sought to deport failed refugee claimants quicker; clamp down on human smuggling; and, required certain visa holders to turn over biometric data.[v] The 2013 Faster Removal of Foreign Criminals Act prohibits permanent residents who have been sentenced to a prison sentence of six months or more from appealing their deportation order; bars foreign nationals who have committed a criminal offense with a sentence of 10 years or more from entering Canada; foreign nationals who are inadmissible on the most serious grounds of security and those who have violated human or international rights or who are involved in organized criminality are no longer eligible for Humanitarian and Compassionate (H&C) consideration.[vi] These legislative changes exemplify “crimmigration” in action. But, Canada is far from atypical in this regard. The United States, the UK, and EU members States, as well as other countries in the Global North, have also adopted the “crimmigration model” for dealing with the overlapping issues and concerns of crime, security, migration, and integration, since at least the “refugee crises” of the 1990s and that have been attenuated by the contemporary “refugee crisis” that is gripping Europe and other parts of the world today.[vii]

Enforcement and Detention: Two Principal Features of Crimmigration

The two notable features of the “crimmigration” or the “criminalization of migration” are enforcement and detention, which overlap and intertwine criminal law and procedure and immigration law and procedure. The use of these policy instruments for attempting to manage migration across State borders is meant to try to ensure compliance with States’ policies and sanctions while, at the same time, serving as a deterrent for those who are undocumented from entering the States’ borders.

The Canadian Border Services Agency (CBSA) fulfills both of these functions for the Government of Canada through its investigations, detection, and apprehension of violators of the Immigration and Refugee Protection Act and operates immigration holding centres (IHCs) in Laval, Quebec, Toronto, Ontario, and Vancouver, British Columbia.[viii] In addition to the IHCs, CBSA often uses high security provincial prison facilities such as the one in Lindsay, Ontario. This is a further derogation of the migrants’ human rights since they are not only being incarcerated with high-risk criminal offenders, but, often without even being charged with a crime under the Canadian Criminal Code. The CBSA’s operating budget for fiscal year 2016-2017 was just under $1.9 billion.[ix] It is an enormous public bureaucracy with the huge task of trying to fulfill its mission to “ensure the security and prosperity of Canada by managing the access of people and goods to and from Canada.”[x]

According to CBSA statistics for 2016-2017, there were 6,251 persons on immigration hold that fiscal year for an average period of about 20 days.[xi] There were 439 who were being held in long-term detention, over 90 days.[xii] Canada’s immigration detention system has been criticized by the media and migrant advocacy groups for being “inhuman, arbitrary, and a violation of international law.”[xiii] For example, Canada is one of the only countries in the world that has no maximum length of immigration detention. The European Union has an 18-month limit and several other countries have a 90-day limit.[xiv] In the United States it is six months.[xv] The United Nations has asked Canada to put a “reasonable time limit” on immigration detention.[xvi] It is quite remarkable that Canada would be an outlier, rather than a leader, with regard to not having a maximum period for immigration detention.

In an effort to try to address Canada’s indefinite immigration detention system, Jared Will, legal counsel for Kashif Ali, Canada’s longest serving immigration detainee who has been incarcerated in a high security provincial facility for about seven years, will bring a constitutional challenge against Ali’s detention.[xvii] He will argue that Ali’s seemingly unending detention amounts to “indefinite detention” and, consequently, is a violation of the Canadian Charter of Rights and Freedoms.[xviii]

It is patently evident that the Canadian Government is investing heavily in immigration enforcement and detention, which comes under the charge of the CBSA and the responsibility of the Minister of Public Safety and Emergency Preparedness. This clearly indicates that enforcement and detention are at the forefront of the Canadian Government’s policies with respect to irregular migration. Undoubtedly, the Government of Canada has continued to adopt a “crimmigration model” to frame its immigration and refugee policies. However, there has been an encouraging positive response from the courts in the recent judgement in Scotland v. Canada (Attorney General) 2017, where Justice Morgan, of the Ontario Superior Court of Justice, granted a writ of habeas corpus to a migrant who was held in a maximum security provincial detention facility under what were described as Kafkaesque-like circumstances.[xix]

Utilizing Universal Human Rights for the Decriminalization of Migration

To stop and reverse the momentum and the trend of “crimmigration” amongst a number of States, particularly those in the Global North, will require a concerted effort of a broad based coalition of human rights groups and their related activities, which are geared for progressive social change and for the realization of the fundamental universal right to the freedom of movement. The process of the “decriminalization of migration” or “decrimmigration”[xx] should include comprehensive and integrated international and national plans for halting and reversing the crimmigration laws and policies of the last three or more decades through the following three measures:

Political Leadership :– at all levels;

Strategic Litigation :
– at all instances of the court system, but, especially the respective Supreme or High Courts, as well as regional human rights courts and the international courts;

Advocacy :
– through classic pressure group politics;
– the effective use of the media – including new digital technologies and the social media;
– strategic voting in local, provincial/state and national elections;
– coalition building by drawing together like minded progressive organizations to create national, transnational and international movements for the realization and the advancement of the universal right to a freedom of movement.

1. Political leadership is essential to bringing the machinery of the State to bear on the realization and the advancement of the universal right to a freedom of movement. It is necessary for the creative development of progressive social change that leads a society toward solutions that satisfy the paramount need for security combined with the protection of fundamental human rights and freedoms. Bold, energizing, and enlightened leadership is needed to inspire and sustain broad based social and political movements that are necessary for realizing and advancing the universal right to a freedom of movement.[xxi]

2. The constitutional courts in the Global North, the destination countries for migrants, including refugees and other forced migrants, are the final arbiters on the most important legal and policy questions of the day. In common and civil law jurisdictions they set the standards for all the lower courts to follow and provide a guiding example for their counterparts across other jurisdictions. The use of strategic litigation to reverse the effect of crimmigration by upholding universal and fundamental human rights, such as the freedom of movement, is absolutely essential. Strategic litigation should be practiced at all instances of the court system, including, the regional and international courts.[xxii]

3. A wide range of advocacy measures and tools need to be adopted to reverse the tide of crimmigration against the assault on the universal human right of the freedom of movement. The use of classic pressure group politics and lobbying the policymakers, at all levels of the political system, for upholding and advancing the universal right to a freedom of movement is needed. Technologically savvy media campaigns need to be forged and adopted to build support and momentum to the cause and defence of everyone’s freedom of movement. Using strategic voting in elections to elect candidates who support decrimmigration and social justice issues for migrants is necessary to ensure that a progressive legislative agenda is introduced for the next sessions of the legislature at the local, provincial/state and national levels. Building broad based coalitions with likeminded groups of organizations is required in order to have any impact on the realization of any human rights cause, including mobility rights. These broad based coalitions need to be at the national, transnational and international levels and their efforts should be coordinated to have the greatest impact and effect.[xxiii]

The central focus in each of these areas — political leadership, strategic litigation, and advocacy – should be on the utilization of universal human rights for the protection and the advancement of the freedom of movement. This is absolutely critical for countering “crimmigration,” with its assault on fundamental universal human rights, like the freedom of movement. Using human rights to defend against crimmigration using these three key measures, as outlined above, is the way forward.

James C. Simeon is Associate Professor, School of Public Policy and Administration, York University, Toronto, Ontario, Canada

Everyone has the right to freedom of movement and residence within the borders of each state.

Everyone has the right to leave any country, including his own, and to return to his country.

Article 12 the International Covenant on Civil and Political Rights states:

Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence.

Everyone shall be free to leave any country, including his own.

The above-mentioned rights shall not be subject to any restrictions except those which are provided by law, are necessary to protect national security, public order (ordre public), public health or morals or the rights and freedoms of others, and are consistent with the other rights recognized in the present Covenant.

No one shall be arbitrarily deprived of the right to enter his own country.

Canadian Constitution Act, 1982, The Canadian Charter of Rights and Freedoms,

Mobility Rights, 6. (1) Every citizen of Canada has the right to enter, remain in and leave Canada.